deadbeat dad

[lydz13]

Thanks...but still unanswered

Thanks stealth and Ldij, You both have been somewhat helpful, but my question is can I appeal the documents the both of us signed in the court lobby, under the fact that I had no idea that I didn't have to sign it or allow him to claim my son, especially that he never even sees him, or part of the agreement was also for him to medically insure my son, which hasn't happened? The thing is this past year my parents claimed my son and I, because I am unemployed and was just going to school fulltime, so I have been on welfare (something I'm not proud of) but I am graduating in a couple of days and hopefully I won't have to depend on the government for support. I just want to know what do I have to do to appeal that agreement? Or if I can, what forms do I need? Where can I get them? I am so frustrated by this whole thing and in the father or lack of one that I have even thought of just asking him to terminate his parental rights, since he's not a parent to my son anyways. He's a grown a*s man and is too scared to even tell his parents about my son, damn coward... Sorry!! But I read on one of the IRS things (forgive me if I'm not sure) that he can only claim my son if we had more than one child, because he already has his other 2 children that he can claim the years that he doesn't claim my son.

 

[lydz13]

another thing

OOh, and another thing I am unsure how the whole tax and child support thing works after all I have never had to do them myself before I was always a dependent. I read up on that Parental test thing on the IRS website and if he ONLY pays child support, does he still pass? Even though he never has my son for 6 month period, hasn't given him insurance, and obviously the CS is not more than 51% of what I have to pay for rent, bills, ...

 

[LdiJ]

Typically (for support orders after 1984), the special IRS rule for divorced or separated parents bars the non-custodial parent from claiming the exemption unless (1) the custodial parent gives their written consent (usually using IRS Form 8332 to do so) or (2) a court decree clearly gives the NCP the unconditional right to claim the dependency exemption (meaning that he has the absolute right to claim the exemption without having to meet any special conditions, such as, for example, being up-to-date in his support payments, etc.).

I have to correct you on something there....and that is your point number 2. Its not a court decree that is required, but rather an AGREEMENT that has been signed into order. If the judge makes an order, and both parents didn't sign off on it as an agreement, then the IRS is not bound by the order and will decide any dispute based on merit. Tax Court case law is very specific on that.

The "Support Test for Divorced or Separated Parents" does NOT apply to parents who have never been married to one another.

You need to check case law on that. It has been found to apply to never married parents as well.

The issue of the arrears can be addressed either in family court or tax court. In some cases, if the NCP is in arrears and they will receive a higher return than the CP for claiming the child then the courts will allow the NCP to claim the child even with the arrears and intercept the tax return to go to the CP to cover arrears. In cases where the NCP is in arrears and claiming the child will not increase their return (in most cases with high income NCP's it will only decrease how much they have to pay) and the CP claiming the child will receive a return from doing so, the courts will rule that CP can claim the child due to the fact that NCP is in arrears and there is no benifit to the debt of the arrears by NCP claiming the child.

A STATE court might rule this way. It is not very likely however because withholding can easily be manipulated to ensure that no refund is available. Tax court won't and hasn't. If Tax Court hears a case that includes arrearages (and no form 8332 has been filed or agreement signed that is silent on the subject of arrearages) then they apply the standard support test...and the arrearages generally knock the ncp out of the water.

 

[stealth2]

Again, until we know whether you have an order signed by the judge and what it actually says, it's impossible to say where you stand.

 

[LdiJ]

Thanks stealth and Ldij, You both have been somewhat helpful, but my question is can I appeal the documents the both of us signed in the court lobby, under the fact that I had no idea that I didn't have to sign it or allow him to claim my son, especially that he never even sees him, or part of the agreement was also for him to medically insure my son, which hasn't happened? The thing is this past year my parents claimed my son and I, because I am unemployed and was just going to school fulltime, so I have been on welfare (something I'm not proud of) but I am graduating in a couple of days and hopefully I won't have to depend on the government for support. I just want to know what do I have to do to appeal that agreement? Or if I can, what forms do I need? Where can I get them? I am so frustrated by this whole thing and in the father or lack of one that I have even thought of just asking him to terminate his parental rights, since he's not a parent to my son anyways. He's a grown a*s man and is too scared to even tell his parents about my son, damn coward... Sorry!! But I read on one of the IRS things (forgive me if I'm not sure) that he can only claim my son if we had more than one child, because he already has his other 2 children that he can claim the years that he doesn't claim my son.

Hon, I can probably answer your question. However I can't answer it until you answer my questions. You have to answer EVERY question or I can't give you a valid answer. If you leave even one question out I can't answer you. I realize that you did answer some of them, but don't make me go find the answers to piece it all together.

Here they are again:

Are there court orders stating that he gets to claim the child every other year for tax purposes?

Are you ordered to provide him a signed form 8332?

Did you sign a form 8332?

Did you sign an agreement allowing him the tax deduction every other year?

Is dad paying child support regularly and consistantly?

Are you aware that even if dad gets the exemption you are still entitled to file head of household and still qualify for earned income credit and daycare credits? (assuming that your income qualifies you for that).

Now here are a couple more:

Who had you sign the papers in the court lobby? Your ex? or your ex's attorney?

Why did you believe that you HAD to sign the papers?

 

[lydz13]

Here they are again:

Are there court orders stating that he gets to claim the child every other year for tax purposes? I guess yes, but it says that he has do them, give them to me to sing the 8332 then i have to file them.

Are you ordered to provide him a signed form 8332? I don't know, it just says he has to give it to me, before a certain date, Jan. 1st of every other year, I think.

Did you sign a form 8332? NO, and my mom's tax preparer made her a copy of the form to give to me and said I shouldn't sign it.

Did you sign an agreement allowing him the tax deduction every other year?I think so, see, I was so cofused and alone that I had no idea what was going on. The hearing officer just said that I should, because the judge would say the samething anyways. Then i find out that, isn't true.

Is dad paying child support regularly and consistantly?Yes, but like I said the amount my son should be getting he doesn't since the Human Service Department takes their cut first. Then we only get $50 a month as an "allowance". Which I hear that only a few states actually give allowances. So I am lucky that I even get that. So until he has paid off what I have been getting I continually only get $50. Which barely buys a month's worth of pampers.

Are you aware that even if dad gets the exemption you are still entitled to file head of household and still qualify for earned income credit and daycare credits? (assuming that your income qualifies you for that). No, I wasn't aware of that, but will I have to payback since I get the CS as income, or does CS not count?

Now here are a couple more:

Who had you sign the papers in the court lobby? Your ex? or your ex's attorney? Neither of us had attorney's, I was alone, he was with his mother-in-law who seemed to know everything and everyone, and then a hearing officer.

Why did you believe that you HAD to sign the papers? Because they told me I didn't know that I didn't have to or that I could simply say "no" I'll see you in court.

 

[abstract99]

Aah, so your original statement WAS incorrect in re the arrears. And again - a court order trumps.

No it wasn't! You just "assumed" that I was saying that the IRS is the one that regulates the arrears.

The other thing that was inaccurate is that a dependents SS number can only go through the system once. It can only go through once electronically, but it can go through a second time via paper.

Technically yes it can go through. I called FIL and he says that he has this happen to at least one of his clients every year. He says that both parties will get a notice from the IRS later in the fall noting the discrepancy and somtimes they let it go but if it happens a second time they start to take action. Please do not give advice on things that are illegal.

I have to correct you on something there....and that is your point number 2. Its not a court decree that is required, but rather an AGREEMENT that has been signed into order. If the judge makes an order, and both parents didn't sign off on it as an agreement, then the IRS is not bound by the order and will decide any dispute based on merit. Tax Court case law is very specific on that.

Well first of all. I pulled that off of a tax law website. So you can go ahead and tell the owner of the site that they are wrong if you feel that they are. Or, you can just go ahead and look up the law that I gave you: 26 USC § 152(e) and that will solve the problem. Also yes you can sign an agreement but if both parties cannot come to an agreement then it can be ordered by the court.

You need to check case law on that. It has been found to apply to never married parents as well.

HOW????

For legal authority, see: DILLARD v. COMMISSIONER., 47 TC Memo 919 n 3 (1984). This case involved a dispute between Dillard (a non-custodial father of a child born out of wedlock) and the IRS as to whether Dillard was entitled to claim his daughter as his dependent under IRC section 152(a). Specifically, the question was whether Dillard's payments for child support, medical expenses, health insurance and life insurance, all for the benefit of the child, amounted to more than half of the child's "total support." The Tax Court concluded that Dillard had in fact provided more than one-half of the total support was therefore entitled to the dependency exemption. The Tax Court recognized that although the child was in the mother's custody, that fact was of no consequence because the father and mother had never been married to one another. As the court noted: "Since [father] and [mother of the child] were never married, the provisions of section 152(e), relating to a child of divorced or separated parents, do not apply."

See also RADIN v. COMMISSIONER, 53 TC Memo 1339 (1987), wherein the tax court again restated the law: "t is clear that section 152(e) applies only to parents who are 'divorced or legal separated under a decree of divorce or separate maintenance, or who are separated under a written separation instrument.' See sec. 1.152-4(a), Income Tax Regs. Consequently, only parents previously united in marriage come within its ambit." (Emphasis supplied.)

Sec. 1.152-4(a) of the Income Tax Regulations (tax regs), states that "the provisions of section 152(e) and this section relate to a determination of which of separated parents (that is, parents who are divorced or legally separated under a decree of divorce or separate maintenance, or separated under a written separation agreement) is to be treated for purposes of section 152(a) and Sec. 1.152-1 as having provided more than half of the support of a child . . . " Note that the definition of "separated parents" does not include parents who have never been married to one another.

In situations involving parents of a child born out of wedlock (where the parents have never been married to one another), the regular support test applies, not the special rule that applies to divorced and [legally] separated parents. In practical terms, this means that if the non-custodial father of a child born out of wedlock provided more than half of the child's total support, he is entitled to claim the child as his exemption, regardless of which parent has custody (and assuming, of course, he meets each of the other four tests for claiming the dependency exemption).

I'm just gonna skip your last one cuz I tire of this. *** Don't forget that just because one of your "clients" got away with something does not mean it was legal. It just means that the other party did not know the laws that are in place to protect them.****

 

[abstract99]

Oh and you other post is interestin too:

The tax exemption case was interesting too....because nothing went as I expected.

Mom and dad got divorced and dad paid no child support for three years (with mom's blessing) so that he could get on his feet financially. He was however supposed to pay 1/2 of school clothes and school expenses. The agreement was that he was to start paying child support in 2004 and would get the tax exemption for 2004.

However, he refused to pay the school clothes and expenses in 2004, and managed to delay things so that child support didn't begin until December (no arrearages). Therefore mom took the tax exemption for 2004 and dad filed for contempt. Mom petitioned to have the exemption permanently because dad was only ordered to pay 45.00 a week in support.

I thought she had about a 50/50 chance not to get dinged on the 2004 exemption but honestly thought the judge would decide the future exemptions based on "merit" since Indiana judges normally are pretty thorough when deciding that.

What happened instead was that the judge basically told dad off for even filing for contempt since he only paid three weeks worth of child support in 2004. He told dad that it didn't matter what the order said because dad didn't support the child.

However, he refused to even consider "merit" for the future. He stated that it was the policy of his court to go every other year on the exemption even if it wasn't equitable, to give the ncp some extra incentive to pay their support.

 

[stealth2]

No it wasn't! You just "assumed" that I was saying that the IRS is the one that regulates the arrears.

No, dear - I read your post. Where you wrote:

If dad is behind on CS it won't really matter anyways because the NCP can only claim the child if he is current.

Yet later you write:

The issue of the arrears can be addressed either in family court or tax court. In some cases, if the NCP is in arrears and they will receive a higher return than the CP for claiming the child then the courts will allow the NCP to claim the child even with the arrears and intercept the tax return to go to the CP to cover arrears. In cases where the NCP is in arrears and claiming the child will not increase their return (in most cases with high income NCP's it will only decrease how much they have to pay) and the CP claiming the child will receive a return from doing so, the courts will rule that CP can claim the child due to the fact that NCP is in arrears and there is no benifit to the debt of the arrears by NCP claiming the child.

which is in direct contradiction with what you first posted. Understand now? What you posted first was wrong.

 

[LdiJ]

Technically yes it can go through. I called FIL and he says that he has this happen to at least one of his clients every year. He says that both parties will get a notice from the IRS later in the fall noting the discrepancy and somtimes they let it go but if it happens a second time they start to take action. Please do not give advice on things that are illegal.

What the heck are you talking about?....illegal???? The whole purpose of the IRS's policy change was to NOT punish the parents who are supposed to get the exemption, just because the parent who wasn't, filed first!

This policy change ensures that both parties get their refund promptly, but only the offending party ends up suffering for it....particularly with the increased interest and penalties.

Well first of all. I pulled that off of a tax law website. So you can go ahead and tell the owner of the site that they are wrong if you feel that they are. Or, you can just go ahead and look up the law that I gave you: 26 USC § 152(e) and that will solve the problem. Also yes you can sign an agreement but if both parties cannot come to an agreement then it can be ordered by the court.

Then it is a slightly out of date website. Go look at publication 17 and review the exact wording.



HOW????

You are misunderstand what I am talking about regarding unwed parents, therefore citing cases that are not applicable. I agree that if there is no signed form 8332 or signed agreement that the standard support test applies.

I am stating however that when there is a signed form 8332 or a signed agreement that the same rules apply for both divorced and never married parents.

However I do suggest that you review some more recent case law. Those cases were from 1984 and 1987....the tax court has had to cover a lot of issues since then.

 

[abstract99]

which is in direct contradiction with what you first posted. Understand now? What you posted first was wrong.

If was the key word in my post. I acknowledged that yes it is technically possible... but VERY VERY rarely happens. You see..... you have to provide over 50% support in 1 year (among other things) for the child to be able to claim them. That meant that I could have paid all CS for the year 2004 but I had 10,000 dollars of arrears from 2003. That means that if I paid over 50% support for the child in 2004 then I can claim them. However, the fact that I would still be in arrears from 2003 the jusdge would look at which parent claiming the child would receive the best benifit from doing so. If me claiming the child will raise my return from -500 to +10 but for CP it would raise it from +400 to +1000 then the judge will more than likely just rule in favor of CP. This is because the +10 that I would have then been getting back would have been giving to Cp anyways to cover 10.00 of the arrears. The court would not look at it as being benificial to CP's financial status (especially if they are a low income parent) to just settle for the 10.00 and not allow them to claim the child resulting in a 600.00 lower return.

 

[stealth2]

You're wrong, but I'm tired of arguing with you.

 

[LdiJ]

Oh and you other post is interestin too:

The tax exemption case was interesting too....because nothing went as I expected.

Mom and dad got divorced and dad paid no child support for three years (with mom's blessing) so that he could get on his feet financially. He was however supposed to pay 1/2 of school clothes and school expenses. The agreement was that he was to start paying child support in 2004 and would get the tax exemption for 2004.

However, he refused to pay the school clothes and expenses in 2004, and managed to delay things so that child support didn't begin until December (no arrearages). Therefore mom took the tax exemption for 2004 and dad filed for contempt. Mom petitioned to have the exemption permanently because dad was only ordered to pay 45.00 a week in support.

I thought she had about a 50/50 chance not to get dinged on the 2004 exemption but honestly thought the judge would decide the future exemptions based on "merit" since Indiana judges normally are pretty thorough when deciding that.

What happened instead was that the judge basically told dad off for even filing for contempt since he only paid three weeks worth of child support in 2004. He told dad that it didn't matter what the order said because dad didn't support the child.

However, he refused to even consider "merit" for the future. He stated that it was the policy of his court to go every other year on the exemption even if it wasn't equitable, to give the ncp some extra incentive to pay their support.

That was state court...it has nothing to do with the IRS regs....or tax court case law. This is where you are getting confused....and its very easy to get confused...because what state courts order and what the IRS rules are is often very contradictory.

If the states courts merely followed the IRS regs, then the non-custodial parent would never be allowed the exemption without the express agreement of the custodial parent.

 

[abstract99]

Then it is a slightly out of date website. Go look at publication 17 and review the exact wording.

I am not gonna bother. Seeing how I don't care AT ALL about what it says then you can feel free to copy and paste but otherwize... who cares? This is becoming a waste of my time and as I am starting to see pointless!

 

[abstract99]

You're wrong, but I'm tired of arguing with you.

Okie dokie sounds good.